Petitioner
Consol of Kentucky, Inc., by James Heslep its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Amos Brewer, by Jasmine Morton
and Linda Garrett his attorneys, filed a timely response.

The
issue presented in the instant appeal is the compensability
of Mr. Brewer's claim for workers' compensation
benefits. On May 18, 2016, the claims administrator rejected
the claim. The Office of Judges reversed the claims
administrator's decision on October 4, 2016, and held the
claim compensable for a right shoulder sprain, a cervical
spine sprain, and a lumbosacral spine sprain. This appeal
arises from the Board of Review's Final Order dated
January 23, 2017, in which the Board affirmed the Order of
the Workers' Compensation Office of Judges. The Court has
carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
for consideration.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Procedure.

Mr.
Brewer alleges that he injured his cervical spine, lumbar
spine, and right shoulder when he slipped while entering a
piece of heavy machinery on May 3, 2016, during the course of
his employment with Consol of Kentucky, Inc. Immediately
following the incident, Mr. Brewer sought treatment in the
emergency department of Williamson Memorial Hospital where he
reported experiencing pain in the posterior aspect of his
right shoulder, lower back pain, and numbness in his hands
after slipping while climbing into a piece of heavy
machinery. Mr. Brewer completed an Employee's and
Physician's Report of Injury while in the emergency
department. In the report, Mr. Brewer indicated that he
injured his right shoulder and back while entering a piece of
machinery. The physician's portion of the report was
completed by healthcare providers at Williamson Memorial
Hospital and Mr. Brewer's injury was categorized as a
muscle strain. A Medical Incident Report was also completed
on May 3, 2016. The report indicates that Mr. Brewer
sustained a right shoulder strain while entering a piece of
heavy machinery.

On May
4, 2016, Mr. Brewer sought treatment in the emergency
department of Tug Valley Appalachian Regional Hospital amid
complaints of progressive pain in the right shoulder and
cervical spine, along with lower back pain, following a work
injury which occurred the previous day. Mr. Brewer was
diagnosed with cervical radiculopathy and a lumbar sprain. An
Employer's Report of Injury was completed on May 16,
2016, and indicates that Mr. Brewer reported experiencing
numbness in his right shoulder and right arm on May 3, 2016,
while attempting to enter a piece of heavy machinery. The
claims administrator rejected Mr. Brewer's application
for workers' compensation benefits on May 18, 2016.

Mr.
Brewer testified in a hearing before the Office of Judges on
September 14, 2016. He testified that on May 3, 2016, he felt
immediate pain in his right arm, back, and shoulder blades
when he slipped while climbing into a piece of heavy
machinery. Mr. Brewer further testified that he reported the
injury to his supervisor immediately. While being
cross-examined by counsel for Consol of Kentucky, Mr. Brewer
was directly asked whether he filed a claim for workers'
compensation benefits because he expected that layoffs would
occur at his worksite. Mr. Brewer indicated that he was
unaware that layoffs would occur prior to the injury, and
specifically stated that he was not informed of a layoff
affecting his job status until after he filed a claim for
workers' compensation benefits.

In its
Order reversing the May 18, 2016, claims administrator's
decision, the Office of Judges held that Mr. Brewer sustained
a compensable injury on May 3, 2016, in the form of a right
shoulder sprain, cervical spine sprain, and lumbar spine
sprain. The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its Order dated
January 23, 2017. On appeal, Consol of Kentucky asserts that
the evidence of record contains inconsistencies which render
a finding of compensability impossible.

The
Office of Judges found that the mechanism of injury described
by Mr. Brewer is consistent with the medical evidence of
record. Moreover, the Office of Judges found that Mr. Brewer
immediately reported the incident and was taken to Williamson
Memorial Hospital where he completed a Report of Injury. In
this report Mr. Brewer stated that he injured his right
shoulder and back when he slipped while entering a piece of
machinery. Further, the Office of Judges found that the
treatment notes from Williamson Memorial Hospital clearly
indicate that Mr. Brewer complained of right shoulder and
back pain following a work-related injury when initially
seeking treatment. Finally, the Office of Judges noted that
Consol of Kentucky asserts that the provisions of West
Virginia Code § 23-4-1c(a)(2)(B) (2009), which provides
that the claims administrator shall take into consideration
any evidence that a claimant received notice of a layoff or
elimination of his position within sixty days of the filing
of a claim for workers' compensation benefits, dictate
that compensability of the claim be denied given that Mr.
Brewer was subject to a layoff within sixty days following
the date of injury. However, the Office of Judges found that
Mr. Brewer's testimony establishes that he was unaware
that Consol of Kentucky would be executing layoffs until
after he filed a claim for workers' compensation
benefits. We agree with the reasoning and conclusions of the
Office of Judges, as affirmed by the Board of Review.

For the
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the evidentiary
record. Therefore, the decision of the Board of Review is
affirmed.

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